An inalienable right to link?
Long-time Web initiates take as bedrock the right to link to any URL
they please. Lawyers assume no such right. Numerous lawsuits have
been filed, since the earliest days of the commercial Web, to
protest linking; in each case one party's perceived right to link
has collided with another's perceived right (not) to be linked to.
No US court has ruled decisively on the many issues, some
surprisingly subtle, that lurk behind what seems at first glance a
simple question: is there a right to link? Late last month a federal
judge issued an interim decision that at least touches on some of
These two quotes from late 1997 suggest the depth of the chasm
across which the Webheads and the lawheads front each other.
Web inventor Tim Berners-Lee:
When you make a bookmark or a hypertext link, you should be able
to make that link to absolutely any piece of information that
can be accessed using networks.
New York attorney Emily Madoff:
There is no legal authority that says you are free to link to
anywhere on someone else's Web site.
This dissonance arises because commercial aspirations have been
layered onto a network designed for freely shared information. An
action such as linking, natural in an environment of mutual trust,
can take on new shades of meanings when employed by a competitor.
For students of the right-to-link question, the best Web starting
point is Stefan Bechtold's Link Controversy Page. It's
comprehensive and faithfully updated. Mark Sableman's 1999 paper
Link Law discusses many of the important cases in detail.
The first closely watched linking dispute was joined in
Scotland's Shetland Islands late in 1996. An upstart newspaper, the
Shetland News, began linking to stories carried by its rival, the
Shetland Times. While the links were simple and straightforward,
their context and presentation delivered a subtle competitive insult
to the larger newspaper. The Times sued, claiming that the links
violated its copyright. To the astonishment of the Web-savvy, a
judge quickly granted an injunction barring the News from linking.
The two papers settled before any final decision could be handed
down. At least one US legal expert believes that under US
copyright law the Shetland case would not have proceeded as far as
Two important linking disputes have involved Ticketmaster, which
holds exclusive rights to sell a wide variety of tickets to
entertainment events in the US. Ticketmaster forbids anyone to link
to any of its site's interior pages, and now says so in fine print
on its home page. In 1997 Ticketmaster sued Microsoft after the
latter's Seattle Sidewalk site launched. Sidewalk featured many
"deep links" to Ticketmaster pages where Sidewalk users could
purchase tickets for particular events. The two sides settled in
February 1999 (Microsoft agreed to link only to Ticketmaster's top
page), again leaving no judicial precedent to guide future content
publishers and linkers.
Ticketmaster is also a party to the linking tussle that currently
embodies the best hope for judicial resolution. Last July the
ticketing giant filed suit against Tickets.com, accusing the
latter of plagiarism, providing false and misleading information,
and illegally deep-linking to Ticketmaster's pages. Tickets.com
filed a motion to dismiss all 10 charges in the lawsuit, and late
last month a Los Angeles district judge ruled on that motion.
The ruling is not the "all clear" signal for deep linking that some
news outlets have reported.
Rather it sends a mixed message.
Ticketmaster claimed that the Tickets.com deep links were in
violation of the site "terms and conditions" posted on the home
page. The judge ruled that this fine print, located as it was one
or more clicks down the page, could not embody a binding contract,
because visitors were not required to assent to it or even to read
it. But the judge left the door open for Ticketmaster to present
evidence that Tickets.com knew or should have known about those
terms and conditions. Ticketmaster's breach-of-contract argument
against deep linking is not dead yet.
In addition the judge allowed to proceed several other Ticketmaster
claims that attack deep linking. In a later phase of the proceeding
Ticketmaster will try to prove that Tickets.com's use of deep links
embodied the unfair business practices of "passing off," "reverse
passing-off," and false advertising. And the judge's ruling allowed
Ticketmaster to advance its claim that the deep links deprived it of
advertising revenue by bypassing its home page.
If the Ticketmaster-Tickets.com case goes to trial and judgement, we
may at last get some judicial clarity on the question of what
restrictions, if any, the commercial world may fairly soon impose on
this most basic of Web techniques.